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Ponds v. State

Court of Appeals of Kansas

February 8, 2019

Steven W. Ponds, Appellant,
v.
State of Kansas, Appellee.

         SYLLABUS BY THE COURT

         1. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited.

         2. Under the facts of this case, where the plaintiff filed a notice of appeal from the district court's summary denial of his K.S.A. 60-1507 motion while a timely motion for reconsideration was still pending in district court, this court has jurisdiction to review the district court's original judgment denying the K.S.A. 60-1507 motion. But we lack jurisdiction to review the district court's later ruling on the motion for reconsideration because the plaintiff did not file a separate notice of appeal from that ruling.

         3. When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court has unlimited review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief.

          4. A prisoner's attempt to relitigate the same claims in a K.S.A. 60-1507 motion that were decided in the prisoner's direct criminal appeal is barred by the doctrine of res judicata.

          Appeal from Sedgwick District Court; James R. Fleetwood, judge.

          Roger L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita, for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Atcheson, P.J., Malone and Leben, JJ.

          MALONE, J.

         Steven W. Ponds appeals the district court's summary denial of his K.S.A. 60-1507 motion. Ponds argues that the district court erred when it summarily denied his motion and that he is entitled to a hearing. The State first argues that this court lacks jurisdiction to hear the appeal because Ponds' notice of appeal was untimely. The State also argues that the district court correctly denied Ponds' motion. We disagree with the State's jurisdictional claim, but on the merits we affirm the district court's judgment.

         Factual and Procedural Background

         In 2009, the State charged Ponds with 14 felony charges, including aggravated burglary, attempted burglary, as well as several counts of burglary and theft. Before trial, Ponds sought to suppress: (1) evidence of his footwear because he claimed the officers lacked probable cause to support his arrest; and (2) evidence from GPS tracking devices attached to his vehicles because the search warrant application failed to provide a substantial basis for the issuing magistrate to conclude there was a fair probability contraband or evidence would be found as a result of those devices. After an evidentiary hearing, the district court denied Ponds' motion to suppress the evidence.

         After a bench trial in 2012, the district court found Ponds guilty of all charges. The district court sentenced Ponds to a controlling term of 244 months in prison. Ponds filed a direct appeal challenging the sufficiency of the evidence and the district court's rulings on the motion to suppress evidence. This court affirmed his convictions and sentence in State v. Ponds, No. 109, 965, 2015 WL 249836 (Kan. App. 2015) (unpublished opinion), cert. denied 136 S.Ct. 2024 (2016) (Ponds I).

         While his direct appeal was pending, Ponds filed a motion to correct an illegal sentence, asserting that the district court erroneously classified his pre-1993 convictions as person felonies in calculating his criminal history score. The district court summarily denied relief, and this court affirmed that decision in State v. Ponds, No. 114, 761, 2016 WL 6822176 (Kan. App. 2016) (unpublished opinion) (Ponds II).

         On May 3, 2017, Ponds filed a K.S.A. 60-1507 motion. Ponds challenged: (1) the district court's refusal to suppress his footwear because of a lack of probable cause; (2) the sufficiency of the evidence to support his convictions; and (3) the district court's denial of his request to suppress the GPS evidence for lack of probable cause.

         On June 26, 2017, the district court filed a journal entry summarily denying Ponds' K.S.A. 60-1507 motion, finding that the three issues raised were the same issues Ponds raised on direct appeal. The district court also found that Ponds' motion contained several conclusory statements, unsupported by any legal argument or evidentiary basis.

         On July 17, 2017, Ponds filed a timely motion for reconsideration of the district court's K.S.A. 60-1507 judgment. Then on November 16, 2017, while the motion for reconsideration was still pending, Ponds filed a notice of appeal of the district court's "decision to deny his 60-1507 motion."

         On January 29, 2018, the district court denied Ponds' motion for reconsideration, finding that it lacked jurisdiction because of the pending appeal. On March 14, 2018, this court granted Ponds' motion to docket his appeal out of time. Ponds did not file a separate notice of appeal from the district court's denial of his motion for reconsideration.

         On appeal, Ponds argues that the district court erred when it summarily denied his K.S.A. 60-1507 motion. Ponds argues that his K.S.A. 60-1507 motion, when read broadly, asserts a claim of ineffective assistance of counsel that can only be resolved with an evidentiary hearing. He also argues that in summarily denying his K.S.A. 60-1507 motion, the district court failed to make sufficient findings of fact and conclusions of law to comply with Kansas Supreme Court Rule 183(j) (2019 Kan. S.Ct. R. 228).

         The State first argues that this court lacks jurisdiction over the appeal because Ponds failed to file his notice of appeal in a timely manner. On the merits, the State argues that the district court correctly denied Ponds' K.S.A. 60-1507 motion.

         Does This Court Have Jurisdiction Over This Appeal?

         To begin with the State questions this court's jurisdiction over this appeal. Ponds does not address the jurisdictional issue. Whether jurisdiction exists is a question of law over which an appellate court's scope of ...


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